B-143688, AUGUST 25, 1960, 40 COMP. GEN. 132

B-143688: Aug 25, 1960

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BIDS - FAILURE TO FURNISH SOMETHING REQUIRED - COMPLETE TECHNICAL DATA THE INADVERTENT OMISSION FROM DESCRIPTIVE DATA OF A CERTAIN PART OF EQUIPMENT WHICH WAS SPECIFICALLY REQUIRED TO BE INCLUDED IN THE TECHNICAL DATA SO THAT THE CONTRACTING AGENCY COULD DETERMINE WHETHER THE SPECIFICATIONS COULD BE SATISFIED BY THE EQUIPMENT PROPOSED TO BE FURNISHED MAY NOT BE REGARDED AS A MINOR OMISSION WHICH SHOULD NOT BE QUESTIONED. WHICH WAS SPECIFICALLY REQUIRED TO BE INCLUDED BY THE TERMS OF THE INVITATION. MAY BE REGARDED AS AN INFORMALITY NOT AFFECTING PRICE OR QUALITY IS THE DIFFERENCE BETWEEN WHAT IS OFFERED ON THE FACE OF THE BID AND WHAT IS REQUIRED UNDER THE INVITATION. THE REJECTION OF A BID AS NONRESPONSIVE TO THE INVITATION BECAUSE THE BIDDER FAILED TO INCLUDE A CERTAIN PART OF EQUIPMENT IN THE TECHNICAL DATA REQUIRED TO BE FURNISHED WITH THE BID FOR PURPOSES OF BID EVALUATION WAS PROPER.

B-143688, AUGUST 25, 1960, 40 COMP. GEN. 132

BIDS - FAILURE TO FURNISH SOMETHING REQUIRED - COMPLETE TECHNICAL DATA THE INADVERTENT OMISSION FROM DESCRIPTIVE DATA OF A CERTAIN PART OF EQUIPMENT WHICH WAS SPECIFICALLY REQUIRED TO BE INCLUDED IN THE TECHNICAL DATA SO THAT THE CONTRACTING AGENCY COULD DETERMINE WHETHER THE SPECIFICATIONS COULD BE SATISFIED BY THE EQUIPMENT PROPOSED TO BE FURNISHED MAY NOT BE REGARDED AS A MINOR OMISSION WHICH SHOULD NOT BE QUESTIONED. AN INADVERTENT OMISSION IN THE DESCRIPTIVE DATA SUBMITTED BY A BIDDER WHICH MADE HIS BID NONRESPONSIVE TO THE INVITATION MAY NOT BE REGARDED AS A MISTAKE WHICH CAN BE CORRECTED UNDER RULES GOVERNING CORRECTION OF MISTAKES IN BIDS. TECHNICAL DATA REQUIRED TO BE SUBMITTED WITH A BID FOR PURPOSES OF BID EVALUATION AS DISTINGUISHED FROM MATERIAL REQUIRED FOR A DETERMINATION OF THE BIDDER'S RESPONSIBILITY MUST BE REGARDED AS A PART OF THE BID SO THAT FAILURE TO INCLUDE THE REQUIRED INFORMATION IN THE TECHNICAL DATA MAKES THE BID NONRESPONSIVE TO THE INVITATION. THE PROPER CRITERION FOR DETERMINING WHETHER THE OMISSION FROM THE DESCRIPTIVE DATA OF A CERTAIN PART OF EQUIPMENT, WHICH WAS SPECIFICALLY REQUIRED TO BE INCLUDED BY THE TERMS OF THE INVITATION, MAY BE REGARDED AS AN INFORMALITY NOT AFFECTING PRICE OR QUALITY IS THE DIFFERENCE BETWEEN WHAT IS OFFERED ON THE FACE OF THE BID AND WHAT IS REQUIRED UNDER THE INVITATION; THEREFORE, IN VIEW OF THE SPECIFIC REQUIREMENT FOR THE SUBMISSION OF TECHNICAL DATA, THE BIDDER'S FAILURE TO INCLUDE ALL THE EQUIPMENT NECESSARY FOR AN EVALUATION OF THE BID MAY NOT BE CONSIDERED AN INFORMALITY WHICH MAY BE WAIVED. A STATEMENT IN A LETTER SUBMITTED WITH A BID THAT THE EQUIPMENT OFFERED MEETS THE REQUIREMENTS OF THE SPECIFICATIONS, NOTWITHSTANDING THAT THE TECHNICAL DATA SUBMITTED WITH THE BID DID NOT INCLUDE CERTAIN EQUIPMENT SPECIFICALLY REQUIRED BY THE INVITATION, DOES NOT OVERCOME THE OMISSIONS IN THE BID DATA. THE REJECTION OF A BID AS NONRESPONSIVE TO THE INVITATION BECAUSE THE BIDDER FAILED TO INCLUDE A CERTAIN PART OF EQUIPMENT IN THE TECHNICAL DATA REQUIRED TO BE FURNISHED WITH THE BID FOR PURPOSES OF BID EVALUATION WAS PROPER.

TO SPEISER, SATINSKY, GILLILAND AND PACKEL, AUGUST 25, 1960:

JERROLD ELECTRONICS CORPORATION, WHOM YOU REPRESENT, HAS PROTESTED THE REJECTION BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. P-33 ISSUED APRIL 29, 1960, FOR THE CONSTRUCTION OF A CLOSED CIRCUIT TELEVISION SYSTEM AT NASA WALLOPS STATION, WALLOPS ISLAND, VIRGINIA.

BIDS WERE OPENED IN ACCORDANCE WITH THE TERMS OF THE INVITATION, AS AMENDED, ON JUNE 10, 1960. FOURTEEN BIDS WERE SUBMITTED WITHIN THE SPECIFIED TIME. THE JERROLD ELECTRONICS CORPORATION BID WAS THE THIRD LOWEST. IT WAS DETERMINED, HOWEVER, THAT THE THREE LOWEST BIDS WERE NOT RESPONSIVE AND AWARD WAS MADE ON JUNE 17, 1960, TO THE FOURTH LOWEST BIDDER, DAGE TELEVISION DIVISION OF THOMPSON, RAMO AND WOOLRIDGE COMPANY.

SO FAR AS WE ARE AWARE, NO OBJECTION HAS BEEN RAISED TO THE DETERMINATION THAT THE TWO LOWEST BIDS ARE NOT RESPONSIVE. IT IS YOUR CONTENTION THAT THE JERROLD BID IS RESPONSIVE AND, IN VIEW OF THE REJECTION OF THE FIRST TWO, BECOMES THE LOWEST RESPONSIVE BID AND, THUS, SHOULD HAVE RECEIVED THE AWARD.

THE SPECIFIC REASON GIVEN FOR THE REJECTION OF THE JERROLD BID IS THAT THE BIDDER PROPOSED TO EMPLOY IN ITS UNIT THE RAYTHEON MICROWAVE RELAY EQUIPMENT, MODEL KTR-1000 A/R. IT IS CONCEDED BY ALL PARTIES THAT THIS UNIT WITHOUT THE USE OF EQUALIZING AMPLIFIERS FAILS TO PROVIDE THE VIDEO FREQUENCY RESPONSES REQUIRED BY THE SPECIFICATIONS. YOU CONTEND, HOWEVER, THAT JERROLD INTENDED TO UTILIZE FOTO VIDEO EQUALIZING AMPLIFIERS MODEL U 30-C WHICH YOU STATE WOULD PROVIDE THE FREQUENCY RESPONSE REQUIRED. THE EQUALIZING AMPLIFIERS WERE NOT LISTED IN THE DESCRIPTIVE DATA TO BE SUBMITTED UNDER THE TERMS OF THE INVITATION WITH EACH BID. THE CONTRACTING OFFICER THEREFORE DETERMINED THAT THE RESPONSIVENESS OF THE BID WOULD HAVE TO BE DECIDED ON THE BASIS OF THE UNIT IN ACCORDANCE WITH THE DATA SUBMITTED, I.E., WITHOUT CONSIDERATION OF THE USE OF THE EQUALIZING AMPLIFIERS; ACCORDINGLY, THE BID WAS REJECTED.

IT IS YOUR POSITION THAT THE RESPONSIVENESS OF THE JERROLD BID SHOULD HAVE BEEN BASED UPON THE UNIT OFFERED TOGETHER WITH THE EQUALIZING AMPLIFIERS WHICH YOU STATE WERE INADVERTENTLY OMITTED FROM THE DESCRIPTIVE MATERIAL. WE PROCEED TO CONSIDER THE MERITS OF YOUR CONTENTIONS ON THE BASIS THAT THE UNIT OFFERED BY YOU WOULD IN FACT MEET ALL OF THE SPECIFICATION REQUIREMENTS, IF THE SPECIFIED EQUALIZING AMPLIFIERS WERE ALSO SUPPLIED, AN ASSUMPTION WHICH DOES NOT APPEAR TO BE UNIVERSALLY ACCEPTED.

THE FOLLOWING PROVISIONS APPEAR ON PAGES 2 AND 3 OF THE INVITATION AS NOTES "B" AND "C"---

NOTE "B"*.

THE FOLLOWING DATA IS REQUIRED FOR EVALUATION OF BIDS:

1. OVERALL SYSTEM LAYOUT INCLUDING ALL TECHNICAL DATA TO SUPPORT THE PROPOSED DESIGN. THIS LAYOUT SHALL CLEARLY INDICATE AMPLIFIER LOCATIONS, CABLE LENGTHS BETWEEN AMPLIFIERS, CABLE ROUTING, CABLE CHARACTERISTICS AND MICROWAVE LINKS AND LOCATION OF EQUALIZERS AND DISTRIBUTION AMPLIFIERS.

2. NAMES AND ADDRESSES OF ALL SUBCONTRACTORS.

3. A COMPLETE LIST OF EACH SYSTEM UNIT (AMPLIFIER, CAMERA, CAMERA CONTROL UNIT, PAN-TILT MECHANISM, TRIPOD MONITOR, CABLE, ETC.) BY MANUFACTURER AND TYPE NUMBER. TO THIS LIST SHALL BE ATTACHED MANUFACTURER'S DESCRIPTIVE TECHNICAL LITERATURE, AND ANY OTHER TECHNICAL DATA NECESSARY TO ESTABLISH THAT THE UNIT WILL SATISFY THE SPECIFIED UNIT AND/OR SYSTEM PERFORMANCE.

NOTE "C":

BIDDERS ARE CAUTIONED THAT THE ABOVE REQUIREMENTS FOR THE SUBMISSION OF DATA SHOULD BE STRICTLY COMPLIED WITH. FAILURE TO SUBMIT THE DATA MAY BE CAUSE FOR REJECTION OF THE BID. WHEN IT IS IN THE BEST INTEREST OF THE GOVERNMENT INFORMALITIES IN DATA FURNISHED MAY BE CORRECTED PRIOR TO AWARD IF SUCH INFORMALITIES DO NOT AFFECT THE PRICE OR QUALITY.

YOU CONTEND FIRST THAT, NOTWITHSTANDING THE STATED REQUIREMENT TO PROVIDE INFORMATION, IT IS A PHYSICAL IMPOSSIBILITY TO INCLUDE EVERY NUT AND BOLT IN THE TECHNICAL DATA. THEREFORE, THE OMISSION FROM THE TECHNICAL DATA OF ANY REFERENCE TO THE EQUALIZING AMPLIFIERS WHICH REPRESENT SLIGHTLY IN EXCESS OF 1 PERCENT OF THE TOTAL BID PRICE SHOULD NOT BE QUESTIONED. SINCE SUCH AMPLIFIERS ARE REQUIRED IN ALL MICROWAVE SYSTEMS, YOU STATE THAT IT SHOULD HAVE BEEN ASSUMED EQUALIZING AMPLIFIERS WOULD BE INCLUDED JUST AS IT SHOULD BE ASSUMED THAT APPROPRIATE LINE CORDS TO PLUG IN TELEVISION CAMERAS WOULD BE INCLUDED.

WHILE THERE IS NO SPECIFIC MENTION OF SUCH ITEMS AS LINE CORDS OR PLUGS, NOTE B IN PARAGRAPHS 1 AND 3 SPECIFICALLY REQUIRED INFORMATION WITH RESPECT TO AMPLIFIERS. ALSO, PARAGRAPH 3 REQUIRES THE SUBMISSION OF TECHNICAL DATA NECESSARY TO ESTABLISH THAT THE UNIT WILL PROVIDE THE REQUIRED PERFORMANCE. WHILE IT IS CONCEDED THAT ALL MICROWAVE SYSTEMS REQUIRE SOME KIND OF EQUALIZING AMPLIFIERS, IT IS SIGNIFICANT TO NOTE THAT ALL EQUALIZING AMPLIFIERS DO NOT HAVE THE SAME PERFORMANCE CAPABILITY AND DETAILED INFORMATION WITH RESPECT TO SUCH AMPLIFIERS WOULD BE REQUIRED IN ORDER TO DETERMINE WHETHER THE SPECIFICATIONS COULD BE SATISFIED BY THE PROPOSED UNIT. THUS, WE CANNOT AGREE THAT THE FAILURE TO INCLUDE THE EQUALIZING AMPLIFIERS IN THE REQUIRED DATA SHOULD BE REGARDED AS A SLIGHT OMISSION NOT TO BE QUESTIONED. CF. B 135865, OCTOBER 13, 1958.

NEXT, IT IS URGED THAT EVEN IF THE OMISSION IS QUESTIONED IT SHOULD BE REGARDED AS A MISTAKE WHICH MAY BE CORRECTED. YOU STATE THAT THE WORKSHEETS USED BY JERROLD PERSONNEL IN PREPARATION OF THE BID CLEARLY INDICATE THAT THE EQUALIZING AMPLIFIERS WERE INTENDED FOR USE AND WERE CONSIDERED IN ARRIVING AT THE BID PRICE. YOU OFFER THE WORKSHEETS FOR EXAMINATION TO ESTABLISH THE NATURE OF THE MISTAKE AND THE INTENDED BID, CITING OUR DECISION, B-126463, JANUARY 16, 1956, IN SUPPORT OF YOUR POSITION THAT THIS IS THE TYPE OF ERROR WHICH MAY BE CONSIDERED FOR CORRECTION.

THE CITED DECISION INVOLVES A SITUATION WHERE A CONSTRUCTION CONTRACTOR FAILED TO INSERT A PRICE OPPOSITE ONE OF THE MANY ITEMS IN THE INVITATION. CORRECTION OF THE OMISSION WAS ALLOWED ON THE SAME BASIS THAT AN UNINTENDED PRICE COULD HAVE BEEN CORRECTED IN THE PROPER CIRCUMSTANCES. TO PERMIT CONSIDERATION FOR CORRECTION, HOWEVER, A BID MUST BE RESPONSIVE IN THE FORM IN WHICH IT IS SUBMITTED. IN OTHER WORDS, A BID WHICH IS NONRESPONSIVE ON ITS FACE MAY NOT BE CONSIDERED FOR CORRECTION REGARDLESS OF THE CIRCUMSTANCES. 38 COMP. GEN. 819. ACCORDINGLY, THE OMISSION MAY NOT BE REMEDIED UNDER THE RULES GOVERNING CORRECTION OF MISTAKES IN BID.

YOU NEXT POINT OUT THAT THE DATA ARE REQUIRED TO BE SUBMITTED UNDER NOTE B FOR "EVALUATION" OF THE BID. YOU CONCLUDE FROM THIS PROVISION THAT THE DATA DO NOT FORM AN INTEGRAL PART OF THE BID BUT SHOULD BE REGARDED ONLY AS AIDS TO DETERMINE THAT THE SPECIFICATIONS WILL BE COMPLIED WITH. YOU STATE THAT THE SITUATION IS CONTROLLED BY OUR REASONING IN B-132399, AUGUST 28, 1957 (37 COMP. GEN. 143), WHICH YOU CONTEND SUPPORTS YOUR POSITION. IN THE CITED CASE THE DATA WERE BY THE SPECIFIC LANGUAGE OF THE INVITATION NOT A PART OF THE BID. WE HELD, THEREFORE, THAT SUCH DATA WERE REQUIRED FOR DETERMINATION OF THE BIDDER'S RESPONSIBILITY RATHER THAN THE BID'S RESPONSIVENESS, AND THAT RESPONSIBILITY UNLIKE RESPONSIVENESS COULD BE BASED ON DATA SUBMITTED AFTER BID OPENING. IN THE WALLOPS ISLAND PROCUREMENT THE DATA ARE SPECIFICALLY REQUIRED FOR EVALUATION OF BIDS. UNLESS BIDS ARE EVALUATED SOLELY ON THE BASIS OF THEIR CONTENT AT THE TIME OF BID OPENING THE COMPETITIVE BID SYSTEM WOULD SOON LOSE ITS INTEGRITY BECAUSE, CONTRARY TO THE PURPOSES OF THE ADVERTISING STATUTES, THE EFFECT WOULD BE THAT BIDS COULD BE VARIED AFTER OPENING AND PRIOR TO AWARD. SEE UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461; 17 COMP. GEN. 554. THEREFORE, THE DATA MUST BE REGARDED AS A PART OF THE BID.

AS YOU POINT OUT, NOTE C STATES THAT FAILURE TO SUBMIT THE REQUIRED DATA "MAY BE CAUSE" FOR REJECTION OF A BID BUT INFORMALITIES MAY BE WAIVED IF THEY DO NOT AFFECT PRICE OR QUALITY. YOU ALLEGE THAT THERE IS NO VARIANCE OF PRICE OR QUALITY IN THIS INSTANCE SINCE JERROLD IN SUBMITTING ITS BID INTENDED TO PROVIDE THE REQUIRED QUALITY AT THE OFFERED PRICE. THEREFORE, YOU STATE, THE FAILURE TO SUBMIT THE DESCRIPTIVE DATA FOR THE EQUALIZING AMPLIFIERS SHOULD BE REGARDED AS AN INFORMALITY.

NOTWITHSTANDING THE APPARENT DISCRETION CONFERRED ON THE CONTRACTING OFFICER IN THE INVITATION FOR BID TO DETERMINE WHETHER THE FAILURE TO COMPLY MAY BE REGARDED AS AN INFORMALITY, WHERE THE LANGUAGE OF AN INVITATION REQUIRES THE SUBMISSION OF DATA WITH THE BID ANY FAILURE TO COMPLY THEREWITH MUST BE REGARDED AS MATERIAL. 39 COMP. GEN. 595, 597; B- 141630, JANUARY 27, 1960. IN ANY CASE, WE MUST TAKE STRONG EXCEPTION TO YOUR VIEW THAT WHETHER THE FAILURE TO COMPLY AFFECTS PRICE OR QUALITY SHOULD BE BASED ON A COMPARISON OF WHAT THE BIDDER INTENDED AND WHAT THE INVITATION REQUIRED. THE PROPER CRITERION FOR DETERMINING WHETHER AN OMISSION OR A VARIANCE MAY BE REGARDED AS AN INFORMALITY NOT AFFECTING PRICE OR QUALITY IS THE DIFFERENCE BETWEEN WHAT IS OFFERED ON THE FACE OF THE BID AND WHAT IS REQUIRED BY THE TERMS OF THE INVITATION. SEE 30 COMP. GEN. 179.

FINALLY, THERE HAS BEEN PRESENTED FOR OUR CONSIDERATION WHETHER THE STATEMENT INCLUDED IN A LETTER SUBMITTED WITH AND AS PART OF THE JERROLD BID THAT,"THIS SYSTEM OF MICROWAVE WILL COMPLETELY MEET THE REQUIREMENTS OF THE SPECIFICATIONS," IS AN OVER-ALL OFFER TO COMPLY, OVERCOMING ANY INADEQUACIES IN REQUIRED DESCRIPTIVE DATA. WE THINK THAT THE QUOTED STATEMENT SHOULD BE REGARDED AS THE ASSERTION OF A CONCLUSION RATHER THAN AS AN OFFER TO PERFORM IN STRICT ACCORDANCE WITH THE SPECIFICATIONS NOTWITHSTANDING ANY OMISSIONS OR VARIANCES IN THE BID DATA. IN ANY CASE, EVEN ACCEPTING THE STATEMENT AS AN OVER-ALL OFFER TO COMPLY, IT CANNOT BE REGARDED AS OVERCOMING THE SPECIFIC PROVISIONS OF THE INVITATION FOR THE FURNISHING OF MATERIAL DATA. 36 COMP. GEN. 415, 417; B-138462, MARCH 9, 1959.

THE DRAFTING OF PROPER SPECIFICATIONS IS WITHIN THE PROVINCE OF THE CONTRACTING AGENCY. CONSISTENT WITH SUCH AUTHORITY THE INVITATION MAY PROPERLY REQUIRE THAT DESCRIPTIVE DATA ACCOMPANY EACH BID. IN THIS CASE THE REQUIREMENT SPECIFICALLY INCLUDED AMPLIFIERS PROPOSED TO BE UTILIZED BY THE BIDDER. FURTHER, THE DATA CONCERNING THE EQUALIZING AMPLIFIERS PROPOSED TO BE USED BY JERROLD ARE REGARDED BY THE CONTRACTING AGENCY AS NECESSARY IN THE EVALUATION OF THE BID. IN THE CIRCUMSTANCES, FAILURE TO SUBMIT THE REQUIRED INFORMATION WITH THE BID REQUIRES THAT THE BID BE REJECTED. SEE 37 COMP. GEN. 763.

ACCORDINGLY, WE MUST CONCLUDE THAT THERE HAS BEEN PRESENTED NO BASIS UPON WHICH WE MAY LEGALLY OBJECT TO THE ACTION TAKEN BY THE CONTRACTING OFFICER.